Sunday, November 20, 2005

Separation Of Powers – Part 2

“The future depends on what we do in the present.”
-- Mahatma Gandhi

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Legal Arguments

II. The Alimony Statute Impermissibly Infringes the Separation of Powers


A. The legislature in § 61.08 Fla. Stat. improperly delegates authority to the judicial branch without proper restrictions. The improper delegation of unbridled authority is further compounded because the authority delegated takes place in the constitutionally protected zone of the right of privacy, namely the privacy protected right of citizens to exercise their personal decisions relating to their marriage, i.e. to dissolve it. The legislature lacks the authority to delegate power it wrongfully grants to the judiciary. Both legislative actions violate the Separation of Powers.

B. Separation of Powers Article II § 3 Fla. Const.

The Florida Constitution Separation of Powers provision is a safeguard designed precisely to prevent the concentration of power in the hands of one branch. In re Advisory Opinion to the Governor, 276 So.2d 25 (Fla.1973).

Bush v. Schiavo
, 885 So.2d 321, (Fla. 2004) is the most recent culmination of Florida law related to Separation of Powers. Bush 885 So.2d states,
“The cornerstone of American democracy known as separation of powers recognizes three separate branches of government--the executive, the legislative, and the judicial--each with its own powers and responsibilities. In Florida, the constitutional doctrine has been expressly codified in article II, section 3 of the Florida Constitution, which not only divides state government into three branches but also expressly prohibits one branch from exercising the powers of the other two branches:

Branches of Government.--The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

‘This Court . . . has traditionally applied a strict separation of powers doctrine," State v. Cotton, 769 So. 2d 345, 353 (Fla. 2000), and has explained that this doctrine "encompasses two fundamental prohibitions. The first is that no branch may encroach upon the powers of another. [*19] The second is that no branch may delegate to another branch its constitutionally assigned power’ Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260, 264 (Fla. 1991) (citation omitted).”
The danger sought to be remedied is best captured by Daniel Webster (1782-1852), who is widely credited with observing:
“Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.”
INTERESTING READING:
* Proposed House Bill H.R. 4861 to make failure to pay alimony a Federal crime.

LEGAL INFORMATION AND RESEARCH CORNER:
*
Covering Private Companies. Places to seek information on private firms.

EXAMPLES OF A JUDICIAL SYSTEM GONE AWRY:
* Fla. Federal Judges Slammed for Secret Docketing
* JQC's disconcerting silence

HOW THINGS ARE HANDLED IN OTHER COUNTRIES:
* India: Wives, beware! Husbands can now seek alimony

CASUALTIES OF STATE SPONSORED VIOLENCE
* Father Blames Justice System As The Reason For His Suicide
* Fiancee says little about Cornett's motives

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